Customs, Excise and Gold Tribunal - Mumbai
Jagdish Sales Corpn. vs Commissioner Of Cus. And C. Ex., Mumbai on 5 February, 2002
Equivalent citations: 2002(144)ELT73(TRI-MUMBAI)
ORDER Gowri Shaftkar, Member (T)
1. Appeal is taken up for disposal, after waiving deposit, with consent of both sides.
2. Jagdish Sales Corpn the appellant before us, is a manufacturer of detergent cakes. A visit by the officers to its factory showed the presence of some quantities of detergent cakes unaccounted in the stock register. Investigation by the officers also let them to believe that the manufacturer cleared some quantity of cakes without payment of duty. The notice issued to it demanded duty on these cakes, proposed confiscation of the detergent cakes which were not entered in the stock register and the penalty on the appellant. The Additional Commissioner ordered recovery of duty on the goods which had not been levied to duty, ordered confiscation of the goods not entered in the register and imposed penalty. The assessee appealed the order. This was that, as a result of issue of Notification 55/97, duty on the detergent cakes that the appellant manufactured has to be determined in terms of Section 4A of the Act, by abatement from the maximum retail price of the goods which it was required to show on the goods under the provisions of the Standards of Weights and Measures Act, 1976. He therefore remand the matter to the Additional Commissioner for redetermining the correct value and hence duty payable on the goods. He confirmed the penalty imposed on the appellant. He confirmed the other parts of the Additional Commissioner's order. Hence this appeal. .
3. The contention of the Counsel for the appellant is that since the show cause notice proceeded on an erroneous calculation of value, the entire notice is illegal and ought to be set aside. He relies upon the decision of the Tribunal in Ajay Chem Industries v. CCE - 1999 (114) E.L.T. 937 in support. We are unable to accept this argument. It is to be noted that the appellant had not questioned either before the Commissioner (Appeals) or before this Tribunal the claim that some of the goods that it manufactured were removed without payment of duty. Doubtless, there is an error in the show cause notice and that it applied, for determination of value and therefore for determination of duty, that the price shown in invoice did not consider the value by applying the provisions of Section 4A. This however, by no means, invalidates the entire notice. We must note here the decision of the Larger Bench of the Tribunal in Bihari Silk & Rayon Processing Mills (P) Ltd. v. CCE - 2000 (121) E.L.T. 617 holding that a notice is not invalid under Section 11A merely for the reason that it does not specify the amount of duty that has been short-levied or short-paid. On the same analysis, it would follow that a notice which has demanded incorrect amount of duty would not be invalid on this count. It goes without saying that the duty that may be determined by applying the provisions of Section 4A for determining the value cannot exceed the duty that has been demanded in the notice under consideration.
4. The decision of the Tribunal that the Counsel for the appellant relies upon found on merits, that the duty demand from Ajay Chem Industries was not in accordance with law and, on this basis of limitation the Tribunal allowed the appeal. This decision therefore is irrelevant.
5. It is next contended by the Counsel for the appellant that the maximum retail price at the relevant time was not available. This point does not appear to have been taken before the Commissioner (Appeals) as remanded matter. We do not think it appropriate for us to consider this point but the appellant to raise this point before the adjudicating authority to whom the matter has been remanded.
6. The appeal is accordingly dismissed.